8:25-cv-00337-BAH) PFLAG, INC. v. Donald J. Trump

FILED: May 21, 2026
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
___________________
No. 25-1279
(8:25-cv-00337-BAH)
___________________
PFLAG, INC.; AMERICAN ASSOCIATION OF PHYSICIANS FOR HUMAN
RIGHTS, INC., d/b/a GLMA: Health Professionals Advancing LGBTQ Equality;
GABE GOE, by and through his parent and next friend George Goe; GEORGE
GOE; BELLA BOE, by and through her parent and next friend Bruce Boe;
BRUCE BOE; CAMERON COE, by and through their parent and next friend
Claire Coe; CLAIRE COE; ROBERT ROE, by and through his parent and next
friend Rachel Roe; RACHEL ROE; LAWRENCE LOE; DYLAN DOE
Plaintiffs - Appellees
v.
DONALD J. TRUMP, in his official capacity as President of the United States;
UNITED STATES DEPARTMENT OF HEALTH & HUMAN SERVICES;
HEALTH RESOURCES AND SERVICES ADMINISTRATION; DIANA
ESPINOSA, in her official capacity as Principal Deputy Administrator of the
Health Resources and Services Administration; NATIONAL INSTITUTES OF
HEALTH; MATTHEW J. MEMOLI, in his official capacity as Acting NIH
Director; NATIONAL SCIENCE FOUNDATION; SETHURAMAN
PANCHANATHAN, in his official capacity as Director of the National Science
Foundation; ROBERT F. KENNEDY, JR., in his official capacity as Secretary of
the U.S. Department of Health and Human Services
Defendants - Appellants
and

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STATE OF WEST VIRGINIA
Defendant
------------------------------
DETRANSITIONERS; THE CATHOLIC HEALTH CARE LEADERSHIP
ALLIANCE; THE CHRISTIAN MEDICAL & DENTAL ASSOCIATIONS; THE
NATIONAL CATHOLIC BIOETHICS CENTER; THE CATHOLIC MEDICAL
ASSOCIATION; THE NATIONAL ASSOCIATION OF CATHOLIC NURSES,
USA; AMERICAN COLLEGE OF PEDIATRICIANS; DO NO HARM, INC.;
STATE OF ALABAMA; STATE OF ALASKA; STATE OF ARKANSAS;
STATE OF FLORIDA; STATE OF GEORGIA; STATE OF IDAHO; STATE OF
INDIANA; STATE OF IOWA; STATE OF KANSAS; STATE OF KENTUCKY;
STATE OF LOUISIANA; STATE OF MISSISSIPPI; STATE OF MISSOURI;
STATE OF NEBRASKA; STATE OF NORTH DAKOTA; STATE OF OHIO;
STATE OF OKLAHOMA; STATE OF SOUTH CAROLINA; STATE OF
SOUTH DAKOTA; STATE OF TENNESSEE; STATE OF TEXAS; STATE OF
UTAH; STATE OF VIRGINIA; STATE OF WEST VIRGINIA; STATE OF
WYOMING
Amici Supporting Appellants
CONSTITUTIONAL ACCOUNTABILITY CENTER; PUBLIC CITIZEN;
INSTITUTE FOR CONSTITUTIONAL ADVOCACY AND PROTECTION;
CLINICAL PRACTICE GUIDELINE EXPERTS; AMERICAN ACADEMY OF
PEDIATRICS AND ADDITIONAL NATIONAL AND STATE MEDICAL AND
MENTAL HEALTH ORGANIZATIONS; MASSACHUSETTS, 18 OTHER
STATES, AND THE DISTRICT OF COLUMBIA
Amici Supporting Appellees
___________________
O R D E R
___________________
The court denies the petition for rehearing en banc. No judge requested a poll
under Fed. R. App. P. 40 on the petition.

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Entered at the direction of the panel: Judge King, Judge Agee, and Judge
Benjamin. Judge Benjamin filed a concurring opinion, in which Judge King joined.
For the Court
/s/ Nwamaka Anowi, Clerk

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D EANDREA GIST BENJAMIN, Circuit Judge, with whom Judge KING joins,
concurring:
The Government asked this court for the extraordinary remedy to stay a
district court’s preliminary injunction over a year after the injunction had been in
place. During that one-year period, the Government repeatedly declined to seek
interim relief from this court despite having multiple opportunities to do so under
the federal appellate rules. The Government’s inexplicable delay and related
litigation conduct preclude any finding of irreparable harm, a required element for
obtaining a stay of an injunction pending appeal.
A panel of this court previously denied the Government’s motion to stay the
district court’s preliminary injunction. Today, this court denies the Government’s
petition to rehear the motion en banc. I write to explain my vote denying the
Government’s motion to stay.
I.
On March 4, 2025, the district court issued a preliminary injunction
prohibiting the Government from “conditioning, withholding, or terminating federal
funding” for any healthcare entity or medical provider based on the entity or
provider’s provision of “gender-affirming care for patients under nineteen” pursuant
to Section 3(g) of Executive Order No. 14,168, Defending Women from Gender

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Ideology Extremism and Restoring Biological Truth to the Federal Government, 90
Fed. Reg. 8615 (Jan. 20, 2025) and Section 4 of Executive Order No. 14,187,
Protecting Children from Chemical and Surgical Mutilation, 90 Fed. Reg. 8771.
Order Granting Plaintiffs’ Motion for Preliminary Injunction (D. ECF No. 116) at
1–2.1 When the district court issued the preliminary injunction, it also denied the
Government’s request to stay the preliminary injunction pending appeal.
Memorandum Opinion on Motion for Preliminary Injunction (D. ECF No. 115) at
65–66.
Under Federal Rule of Appellate Procedure 8, a party may move in the court
of appeals for a stay pending appeal after first seeking that relief in the district court
and the district court either “denied the motion or failed to afford the requested
relief.” Fed. R. App. P. (8)(a)(2)(ii).
Despite the district court’s denial of the Government’s initial request to stay,
the Government did not seek a stay of the preliminary injunction in this court as it
was permitted to do under Rule 8. Instead, the Government represented to plaintiffs
that it would not request another stay of the preliminary injunction. Exhibit to
Plaintiffs’ Response in Opposition to Government’s Motion for Stay Pending
Appeal (D. ECF No. 155-2) at 2 (“We understand that [the Department of Justice]
1 Page numbers for citations to ECF documents utilize the page numbers in
the blue or red headers on each document.

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is not planning to seek a stay of the [preliminary injunction] as things currently stand,
but we’d reserve the right to seek a stay depending on any subsequent orders.”).
Based on that representation, the parties jointly moved to stay certain district court
deadlines pending appeal, and the district court granted that request.
Four months later, on July 28, 2025, the Government reversed course and
returned to the district court to request a stay for a second time. Government’s
Motion for Stay Pending Appeal (D. ECF No. 151). The Government requested the
district court to stay the preliminary injunction pending appeal or, in the alternative,
stay the preliminary injunction to the extent the injunction extends beyond the named
plaintiffs and those members of the organizations who have submitted declarations
establishing their standing. Id. This second motion to stay principally relied on
intervening decisions that the Government contended strengthened its likelihood of
success on the merits. Id. at 3–11. Notably, those decisions were issued weeks and
months before the Government filed its second motion to stay.2
2 Specifically, the Government cited (1) Trump v. American Federation of
Government Employees (AFGE), 145 S. Ct. 2635 (2025) (mem.); (2) National Ass’n
of Diversity Officers in Higher Education (NADOHE) v. Trump, No. 25-1189 (4th
Cir. Mar. 14, 2025), ECF No. 29; (3) Trump v. CASA, Inc., 606 U.S. 831 (2025); and
(4) United States v. Skrmetti, 605 U.S. 495 (2025). Government’s Motion for Stay
Pending Appeal (D. ECF. No. 151-1) at 3–11. The AFGE decision was issued on
July 8, 2025, almost three weeks before the Government filed its second motion to
stay; the NADOHE order was issued on March 14, 2025, over four months before
the Government filed its second motion to stay; the CASA opinion was issued on
June 27, 2025, a month before the Government filed its second motion to stay; and

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The Government’s second motion to stay sat pending for eight months. While
the motion was pending, the Government, again, could have sought relief in this
court under Rule 8. See Fed. R. App. P. 8(a)(2)(A)(ii) (allowing party to move for
stay in appeals court if a district court “fail[s] to afford the requested relief”); see
also Al Otro Lado v. Wolf, 952 F.3d 999, 1006 n.5 (9th Cir. 2020) (entertaining a
stay motion even though the district court had not yet ruled and finding that a delay
of three weeks was sufficiently long to fall under Rule 8(a)(2)(A)(ii)).
During that eight-month period, briefing on the merits continued in the
underlying appeal. Shortly before the Government’s reply brief was due, this court
sua sponte placed the merits appeal in abeyance “pending a decision by this court in
Anderson v. Crouch, No. 22-1927.” Order Placing Appeal in Abeyance (ECF No.
111). After this court issued its decision in Anderson, the Government moved to set
a schedule to complete briefing and to hold oral argument, which the court denied
on March 23, 2026.
Only then—eight months after filing its second motion to stay in the district
court and over a year after the district court issued its preliminary injunction—did
the Government indicate that it intended to seek a stay of the district court’s
preliminary injunction in this court. The Government did so by filing a notice of
the Skrmetti opinion was issued on June 18, 2025, over a month before the
Government filed its second motion to stay.

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supplemental authority in the district court. Government’s Notice of Supplemental
Authority (D. ECF. No. 164). The notice stated that if the district court did not rule
on the Government’s pending motion to stay by April 2, 2026, the Government
would seek relief from this court. Id. at 1–2. Like the second motion to stay, the
notice of supplemental authority cited decisions that the Government believed
favored its merits position. Id. And also like in the second motion to stay, the cited
decisions were issued weeks and months before the notice of supplemental authority
was filed.3
On April 1, 2026, the district court denied the Government’s second motion
to stay, concluding that the Government’s “delay in seeking a stay belie[d] [its] claim
of irreparable harm.” Order Denying Motion for Stay Pending Appeal (D. ECF No.
166) at 3.
At last, on April 3, 2026, over a year after the preliminary injunction was
3 Specifically, the notice cited (1) Sustainability Inst. v. Trump, 165 F.4th 817,
830–32 (4th Cir. 2026); (2) Solutions in Hometown Connections v. Noem, 165 F.4th
835, 844 (4th Cir. 2026); (3) National Ass’n of Diversity Officers in Higher Educ.
(NADOHE) v. Trump, 167 F.4th 86, 101-02 (4th Cir. 2026); (4) Anderson v. Crouch,
169 F.4th 474 (4th Cir. 2026). D. ECF 164-1 at 2. The Sustainability Institute
opinion was issued on January 21, 2026, three months before the Government filed
the notice of supplemental authority; the Hometown Connections opinion was issued
on January 23, 2026, more than two months before the Government filed the notice
of supplemental authority; the NADOHE opinion was issued on February 6, 2026
almost two months before the Government filed the notice of supplemental
authority; and the Anderson opinion was issued on March 10, 2026, almost three
weeks before the Government filed the notice of supplemental authority.

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issued, the Government moved in this court to stay the district court’s order pending
appeal. For irreparable harm, the Government took issue with the injunction’s
universal nature and argued that the injunction exceeds the district court’s authority
and improperly prevents the Government from enforcing its policies against
nonparties. The Government further argued that the injunction directly intrudes
upon the President’s authority to determine his policy priorities and instruct his
agents to make funding decisions based on those priorities.
A panel of this court denied that motion to stay. Order Denying Motion to
Stay Pending Appeal (ECF No. 127).
II.
A stay pending appeal is an “extraordinary” remedy. Williams v. Zbaraz, 442
U.S. 1309, 1311 (1979) (Stevens, J., in chambers); see also Ruckelshaus v. Monsanto
Co., 463 U.S. 1315, 1316 (1983) (Blackmun, J., in chambers). It is “an exercise of
judicial discretion,” the propriety of which “is dependent upon the circumstances of
the particular case.” Nken v. Holder, 556 U.S. 418, 426 (2009) (quoting Virginian
R. Co. v. United States, 272 U.S. 658, 672–73 (1926)). Our discretion to issue this
extraordinary remedy is guided by four factors: “(1) whether the stay applicant has
made a strong showing that he is likely to succeed on the merits; (2) whether the
applicant will be irreparably injured absent a stay; (3) whether issuance of the stay

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will substantially injure the other parties interested in the proceeding; and (4) where
the public interest lies.” See id. (quoting Hilton v. Braunskill, 481 U.S. 770, 776
(1987)). The first two factors are the “most critical.” Id. at 434. And a showing of
irreparable injury is necessary for a stay. KalshiEX LLC v. Commodity Futures
Trading Comm’n, 119 F.4th 58, 64 (D.C. Cir. 2024).
This “threshold showing” of irreparable harm is necessary “regardless of the
petitioner’s proof regarding the other stay factors.” Doe #1 v. Trump, 957 F.3d 1050,
1058 (9th Cir. 2020) (internal citations omitted); accord Labrador v. Poe ex rel. Poe,
144 S. Ct. 921, 929 (2024) (Kavanaugh, J., concurring) (“If the moving party has
not demonstrated irreparable harm, then this Court can avoid delving into the
merits.”); Transcon. Gas Pipe Line Co., LLC v. Pennsylvania Envtl. Hearing Bd.,
108 F.4th 144, 151 (3d Cir. 2024) (“[I]f there is . . . an absence of an irreparable
harm, then an analysis of the remaining considerations is unnecessary.”). “[S]imply
showing some possibility of irreparable injury is insufficient.” Doe #1, 957 F.3d at
1058–59 (quoting Nken, 556 U.S. at 434). Instead, a movant must “show[] that
irreparable injury is likely to occur during the period before the appeal is decided.”
Id. at 1059.
The Government cannot make the threshold showing of irreparable injury
here because (A) it unreasonably delayed in seeking a stay of the preliminary
injunction in this court and (B) it conducted the litigation in a manner inconsistent

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with its plea of irreparable injury.
A.
A party’s delay in seeking a stay implies a lack of irreparable injury. Beame
v. Friends of the Earth, 434 U.S. 1310, 1313 (1977) (Marshall, J., in chambers)
(“The applicants’ delay in filing their petition and seeking a stay vitiates much of the
force of their allegations of irreparable harm.”); see also Benisek v. Lamone, 585
U.S. 155, 159 (2018) (Per Curium) ( (“[A] party requesting a preliminary injunction
must generally show reasonable diligence.”). That is so because the “failure to act
sooner undercuts the sense of urgency that ordinarily accompanies a motion for
preliminary relief.” Citibank, N.A. v. Citytrust, 756 F.2d 273, 276 (2d Cir. 1985)
(internal citations omitted); accord Fish v. Kobach, 840 F.3d 710, 753 (10th Cir.
2016) (“[I]t is true that delay in seeking preliminary relief cuts against finding
irreparable injury.”).
An unreasonable delay alone may be a sufficient ground to deny a stay. See
Tough Traveler, Ltd. v. Outbound Products, 60 F.3d 964, 968 (2d Cir. 1995); see,
e.g., Ng. v. Bd. of Regents of Univ. of Minnesota, 64 F.4th 992, 997–99 (8th Cir.
2023). The key question is “whether the delay was reasonable” or instead “a
decision by the party to sit on its rights.” Fish, 840 F.3d at 753 (internal citations
omitted).
The Government’s delay here was unreasonable and clearly a decision to sit

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on its rights. After the district court denied a stay on March 4, 2025, the Government
waited more than a year before seeking relief in this court, even though Rule 8
authorized it to do so that day. In addition to waiting, the Government represented
that it did not intend to seek a stay in this court, a representation that premised the
parties’ joint motion to pause the district court proceedings. And even after
reversing course and filing its second stay motion in July 2025, the Government
allowed that motion to remain pending for more than eight months without seeking
appellate intervention, even though Rule 8 authorized the Government to file a
motion in this court once the district court failed to act. The Government’s failure
to seek relief when Rule 8 permitted it do so and its representation that it would not
seek a stay reflect an intentional decision to sit on its rights.
The Government’s delay and inaction stand in stark contrast to the
government’s actions in other executive order and federal funding related cases,
Sustainability Institute and NADOHE. In Sustainability Institute, the district court
entered an injunction and denied the government’s stay request in the same order.
The government filed its notice of appeal the very next day and then moved for a
stay in this court the day after that. Likewise, in NADOHE, the government filed a
notice of appeal within days of the preliminary injunction, sought a stay in the district
court the next day, and promptly moved for a stay in this court after the district court
denied relief. Although the district court here entered the preliminary injunction on

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March 4, 2025, the Government did not file its notice of appeal until twenty days
later on March 24, 2025. The Government then waited another four months before
filing its second motion to stay. It then allowed its second motion to stay to languish
for eight additional months and, in total, waited more than a year before seeking
relief from this court. The Government’s markedly different litigation conduct here
shows that the Government made a deliberate decision not to seek appellate relief in
this case.
The Government seems to offer three reasons to excuse its delay, but none are
persuasive.
First, the Government argues that any delay in seeking a stay was attributable
to circumstances outside its control, namely the district court’s failure to rule on the
Government’s second stay motion for more than eight months and this court’s
decision to hold the merits appeal in abeyance pending Anderson. But neither
circumstance prevented the Government from seeking relief in this court. The
Government was not required to wait for the district court to rule on its second stay
motion before seeking appellate relief. As explained above, Rule 8 authorizes a stay
motion where the district court has “failed to afford the relief requested,” Fed. R.
App. P. 8(a)(2)(A)(ii), and courts have found that even a matter of weeks may
suffice, Al Otro Lado, 952 F.3d at 1006 n.5. Nor did the abeyance of the merits
appeal impair the Government’s ability to seek a stay in this court. The very purpose

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of a stay pending appeal is to preserve the status quo while the appeal remains
pending. See Nken, 556 U.S. at 429. An appeal held in abeyance is still an appeal
pending before the court. The appeal’s abeyance therefore provided no justification
for the Government’s decision to wait more than a year after the entry of the
preliminary injunction before seeking appellate relief.
Second, the Government repeatedly points to intervening legal developments
that purportedly undermine the district court’s injunction. But the Government fails
to note that the decisions on which it now principally relies were all issued well
before it sought relief in this court: CASA was issued on June 27, 2025, Sustainability
Institute was issued on January 1, 2026, and NADOHE was issued on February 6,
2026, yet the Government waited until July 28, 2025 to file its second stay motion
in the district court and until April 3, 2026 to seek a stay from this court. Moreover,
the Government’s timing strongly suggests that what changed was not the existence
of irreparable harm, but rather the Government’s assessment of its likelihood of
success on the merits.4
4 This is perhaps the largest conceptual issue with Government’s stay request.
The Government argues that intervening precedent strengthening its merits position
is dispositive of its stay request. But whatever force those merits arguments may
ultimately have, they do not relieve the Government of its independent obligation to
establish irreparable injury as a prerequisite for stay relief. See KalshiEX, 119 F.4th
at 63–64 (“While the question on the merits is close and difficult, the [movant]
cannot obtain a stay at this time because it has not demonstrated that it or the public
will be irreparably harmed while its appeal is heard.”). That independent
requirement follows from the nature and purpose of interim relief like a stay. A stay

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pending appeal is not a mechanism for revisiting the correctness of the underlying
decision. It is an extraordinary remedy designed to preserve the appellate court’s
ability to provide meaningful relief while the ordinary appellate process unfolds. See
Nken, 556 U.S. at 429 (“A stay simply ‘suspend[s] judicial alteration of the status
quo.’ ” (alteration in original) (quoting Ohio Citizens for Responsible Energy, Inc.
v. NRC, 479 U.S. 1312, 1313 (1986) (Scalia, J., in chambers))); id. at 432 (“The
authority to grant stays has historically been justified by the perceived need ‘to
prevent irreparable injury to the parties or to the public’ pending review.” (quoting
Scripps-Howard v. FCC, 316 U.S. 4, 9 (1942))). As commentators have explained,
interim relief exists to preserve the court’s remedial options pending appellate
review, not to collapse emergency proceedings into premature merits adjudications.
See, e.g., Jill Wieber Lens, Stays of Injunctive Relief Pending Appeal: Why the
Merits Should Not Matter, 43 Fla. St. U. L. Rev. 1319, 1320–21 (2016) (explaining
that stays preserve the usefulness of appellate review because “[o]nce the egg is
scrambled, even a mighty appellate court can’t unscramble it”); Samuel L. Bray, The
Purpose of the Preliminary Injunction, 78 Vand. L. Rev. 809, 812–13 (2025)
(criticizing the collapse of equitable interim relief into a “one-factor test” dominated
by merits predictions and emphasizing that interim relief exists to preserve the
court’s remedial options); William Baude, The Interim Docket, 94 U. Chi. L. Rev.
(forthcoming 2027) (writing on the Supreme Court’s “interim docket,” also known
as the “shadow docket” or “emergency docket,” and explaining that the interim
docket is ancillary to the Supreme Court’s merits docket and should not be a vehicle
for routine error correction). Indeed, interim relief requires courts to tolerate the risk
that the ultimately “better” view of the merits may temporarily go unenforced
because the more important question at the emergency stage is whether immediate
intervention is necessary to prevent irreparable injury before appellate review. See
NetChoice, LLC v. Fitch, 145 S. Ct. 2658 (2025) (Kavanaugh, J., concurring in the
denial of the application to vacate stay) (concurring in the denial of an “application
for interim relief” because even though the applicant had “demonstrated that it is
likely to succeed on the merits,” it had not “sufficiently demonstrated that the
balance of harms and equities favors it at this time”); see also Teva Pharm. USA,
Inc. v. Sandoz, Inc., 572 U.S. 1301 (2014) (Roberts, C.J., in chambers) (denying
application to recall and stay the Federal Circuit’s mandate where the applicant had
not shown a “likelihood of irreparable harm from denial of a stay,” despite
concluding that the applicant had “shown a fair prospect of success on the merits”);
Graddick v. Newman, 453 U.S. 928, 933 (1981) (Powell, J., in chambers) (denying
an application for stay where the applicants failed to show a threat of irreparable
injury, despite acknowledging that the application “raised interesting and substantial
questions on the merits”). Accordingly, even assuming the Government may

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Third, the Government argues that the “passage of time” since the injunction
was issued “only underscores the irreparable harm” and that the injunction has
“persisted far too long.” Government’s Petition for Rehearing En Banc (ECF No.
128) at 22. The Government laments that it “has no control over the fact that the
underlying appeal on the merits is in abeyance indefinitely, intruding on the
President’s authority to direct his subordinates with every passing day.”
Government’s Reply in Support of Motion to Stay Pending Appeal (ECF No. 126)
at 22; see also ECF No. 128 at 22 (“[T]he particular need for a stay is driven by the
confluence of events that have left the government with no prospect of timely relief
from this erroneous injunction.”) But that argument ignores the fact that the
Government itself repeatedly chose not to seek available relief. If the injunction
inflicts the sort of irreparable institutional injury the Government now claims, that
injury also existed in March 2025, in July 2025, and throughout the many months
that followed. The Government nevertheless chose not to seek relief from the
injunction in this court during that period. A party that repeatedly declines to seek
available relief cannot plausibly characterize the same alleged injury as suddenly
urgent and irreparable more than a year later.
ultimately prevail on the merits here, that does not excuse its failure to establish the
separate and indispensable requirement of irreparable harm.

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B.
A party’s litigation conduct can also indicate a lack of irreparable injury. See
West Virginia v. B.P.J., by Jackson, 143 S. Ct. 889 (2023) (Alito, J., dissenting) (“[I]t
is a wise rule in general that a litigant whose claim of urgency is belied by its own
conduct should not expect discretionary emergency relief from a court.”). For
example, consenting to a stay or declining to seek expedited review on appeal, when
unexplained, undercuts a claim of irreparable injury. Hanson v. D.C., 120 F.4th 223,
245–46 (D.C. Cir. 2024), cert. denied, 145 S. Ct. 2778 (2025).
The Government’s litigation conduct here is inconsistent with its claim of
irreparable injury. After the district court entered the preliminary injunction and
denied a stay pending appeal, the Government expressly represented that it was “not
planning to seek a stay of the [preliminary injunction] as things currently stand.” D.
ECF No. 155-2 at 2. Based on that representation, the parties jointly sought and
obtained a pause in the district court proceedings pending appeal. The Government
then allowed the injunction to remain in effect for months before reversing course
and filing its second stay motion. This conduct clearly belies any claim of urgency.
The Government attempts to minimize its representation that it did not intend
to seek a stay by emphasizing that it “reserve[d] the right to seek a stay depending
on any subsequent orders.” ECF No. 128 at 19 n.2. According to the Government,
“the steady stream of precedent undermining every aspect of the district court’s

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injunction” later changed where “things stand.” Id. But that argument does not
show that the Government faces irreparable injury. In fact, the Government’s
argument confirms that what changed was not the threat of irreparable injury, but its
perception that subsequent precedent improved its merits position.5
The Government’s conduct in related litigation reinforces the point. In
Washington v. Trump, No. 25-1922 (9th Cir.), another district court enjoined the
same executive orders and denied a stay, yet the government has not sought a stay
of the injunction from the Ninth Circuit.
The Government attempts to distinguish its actions in Washington by noting
that the injunction there is limited to the plaintiffs in that case and that the merits
appeal has progressed further than the appeal here. But those distinctions do not
explain how the Government is irreparably injured here and not in Washington. The
Government argues that the injunction here causes irreparable harm because it
interferes with the President’s authority to direct executive agencies and make
funding decisions consistent with his policy priorities. If the injunction truly inflicts
that sort of irreparable injury, those harms would exist regardless of whether the
injunction is nationwide or plaintiff-specific and regardless of the procedural posture
5 As discussed above in footnote 4, the Government’s arguments that
intervening precedent has strengthened its merits position does not relieve the
Government from establishing the separate and independent Nken factor of
irreparable injury.

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of the underlying appeal. The Government’s selective pursuit of a stay demonstrates
that its request to stay the district court’s preliminary injunction here is not a
response to irreparable injury.
III.
Accordingly, I believe the Government’s own delay and litigation conduct
foreclosed any credible showing of irreparable harm and voted to deny the
Government’s motion for a stay pending appeal for that reason alone.

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